Intellectual property law is good. Excess in intellectual property law is not. This blog is about excess in Canadian and international copyright law, trademarks law and patent law. I practice IP law with Macera & Jarzyna, LLP in Ottawa, Canada. I've also been in government and academe. My views are purely personal and don't necessarily reflect those of my firm or any of its clients. Nothing on this blog should be taken as legal advice.

Wednesday, December 08, 2010

More Confusion and Concern re AC Proposed Tariff

1. The AUCC’s request from yesterdayfor a delay that differentiates between what it characterizes as AC’s application for an “interim decision” and an “interim tariff” confirms the problem that AC has created and the confusion that has ensured.

2. It is not clear that there is any difference between the so called “interim decision” process and the”interim tariff” process. If there is any difference, the latter apparently stems from and is inextricably linked with the former. AC filed a lengthy letter dated October 7, 2010 asking for a rather vague “relief” by way of an “interim decision”. This was clearly a very carefully chosen phrase to take advantage of whatever jurisdiction the Board may have via s. 66.51 of the Act. However, as they say, if something looks like a tariff, walks like a tariff, and smells like a tariff - then it probably is a tariff.

3. AUCC is calling for a delay of one week only from December 10 to December 17, 2010 on both aspects (i.e. “Interim decision” and “interim tariff”), but is apparently willing to file submissions on the question of an “interim decision” by the current deadline of Friday. This presumably relates to the question of WHETHER there should be an interim tariff, and not the content of such a tariff which would then require subsequent submissions.

4. As I’ve suggested before, the Act does NOT give the Board any jurisdiction to award an “interim tariff” in these circumstances - for many reasons. Moreover, even the Board’s own precedents militate strongly against such a decision, essentially because there is no previous tariff in place and AC doesn’t need to be funded by its objectors.

5. Even the Board itself seems confused and lacking in essential information from AC. It has given extraordinary accommodation to AC to repair a flawed record. The Board has set a single deadline of December 10, 2010 for objectors and intervenors to respond, and has asked for yet more material from AC by today, December 8, 2010, which objectors and intervenors will need to assimilate in just two days.

6. If AUCC - with all of its resources and a $2 million war chest for this matter - seems concerned about “procedural fairness” and may even be confused itself by this situation, it is no wonder that others may also be confused, concerned and seriously prejudiced.